Any order signed by Customer and NatureMetrics for services which references these Portfolio Terms (“Order”), shall incorporate these Portfolio Terms. Customer's use of and access to the Services and/or Kit & Test Services (as applicable and as further defined under an Order) is conditional on its compliance with and acceptance of these Portfolio Terms. These Portfolio Terms and an Order together form the “Contract”.
1. Definitions and interpretation
1.1 The definitions and rules of interpretation set out in Schedule 1 shall apply to this Agreement.
1.2 In this Agreement:
(a) the Order Form entered into by Customer and Supplier shall form part of these Portfolio Terms, along with the Additional Service Terms;
(b) in the event of any conflict in respect of the provisions of this Agreement and/or the documents referred to therein the following order of priority shall prevail (in descending order of priority):
(i) the Order Form;
(ii) the Additional Service Terms;
(iii) the Acceptable Use Policy; and
(iv) the Portfolio Terms,
(c) subject to the order of priority between documents in section 1.2(b), later versions of documents shall prevail over earlier ones if there is any conflict or inconsistency between them.
1.3 These Portfolio Terms do not apply to Supplier's generally available marketing website(s) (e.g. www.naturemetrics.com), nor to any of Supplier's other services which are not expressly referenced in the Order Form. These Portfolio Terms supersede any previously issued terms and conditions of purchase or supply.
1.4 If a Customer Affiliate enters into the Order Form:
(a) all references to the 'Customer' in this Agreement or in the Order Form shall refer to Customer Affiliate;
(b) Customer Affiliate shall be deemed to have entered into a separate agreement with Supplier under the same terms as this Agreement, which shall apply mutatis mutandis; and
(c) the contract between Supplier and Customer Affiliate shall be enforceable by Supplier and Customer Affiliate only, and Supplier will have no liability towards Customer in respect of such Order Form.
1.5 No terms or conditions endorsed on, delivered with, or contained in Customer’s purchase conditions, order, confirmation of order, specification or other document shall form part of this Agreement.
2. Contracting with NatureMetrics
2.1 This Agreement is entered into between Customer and:
(a) NatureMetrics North America Ltd if Customer is located in North America. NatureMetrics North America Ltd is a company incorporated and registered under the laws of Ontario with a registered address at 590 Hanlon Creek Blvd, Unit 11, Guelph, Ontario, Canada, N1C 0A1; or
(b) NatureMetrics Ltd if Customer is located outside North America. NatureMetrics Ltd is a company incorporated and registered in England with company number 09243907, whose registered office is at 1 Occam Court, Surrey Research Park, Guildford, GU2 7HJ, United Kingdom.
2.2 Supplier may provide the Services through any of its affiliates.
3.1 Upon Order Acceptance and subject to the terms of this Agreement, Supplier shall:
(a) provide access to the Platform in accordance with section 4;
(b) provide access to the Final Reports in accordance with section 5; and
(c) perform Additional Services (including where applicable, Survey Design Services) in accordance with section 7.
4. Platform and Supplier Provided Materials
4.1 Upon Order Acceptance and subject to the terms of this Agreement, Supplier grants Customer a non-exclusive, non-transferable, non-sublicensable, personal right to, for the term of this Agreement for the Permitted Purpose to:
(a) use the Platform; and
(b) use the Supplier Provided Materials.
4.2 Customer acknowledges that the Services do not include dedicated data back up or disaster recovery facilities (and Customer should ensure it at all times maintains backups of all Customer Data).
4.3 Supplier may from time to time provide new versions or updates to the Platform at no additional cost to Customer (excluding Additional Services which shall incur additional fees) in order to:
(a) fix bugs or update security;
(b) improve general performance;
(c) enhance the features and functionality described in the Platform Description; or
(d) support new devices and operating systems.
5. Access to Final Reports
5.1 Subject to the payment of all relevant fees payable to Supplier by (i) the relevant Project Partner under the relevant Project Partner Agreement, and (ii) Customer under the applicable Order Form, Final Reports shall be provided to Customer. If Customer:
(a) has a subscription to the Platform, the Final Report may be made available to Customer via the Platform or other appropriate communication channels (as determined by Supplier's sole discretion, acting reasonably);
(b) does not have a subscription to the Platform, Supplier may make the Final Report available to Customer by email or other appropriate communication channel (as determined by Supplier's sole discretion, acting reasonably).
5.2 Customer is responsible for making backup copies of Final Reports.
5.3 If a Final Report becomes available after the end of the Subscription Period, Supplier may at its sole discretion, make the Final Report available to Customer by such means it deems appropriate.
5.4 Customer acknowledges that the Services (including any Final Reports) does not purport to identify with complete certainty whether a species is present or absent at a particular location at a particular point in time. Final Reports and the Service are by their nature informational only and are not intended to be advisory. Interpretation of a Final Report and Services and any consequential decision making are the sole responsibility of Customer, and Supplier does not accept any responsibility or liability in respect of actions taken by Customer in reliance on the content of a Final Report or the Services.
5.5 Customer acknowledges that Final Reports and the Services may contain information on the presence or absence in certain locations of 'at-risk' species. Both Supplier and Customer acknowledge the potential negative impact on those species that publishing this information (whether in whole or in part) may have (with regards to, for example, poaching risk), and so will act responsibly when deciding if and by what means to transmit this information outside of their respective businesses. Customer acknowledges that if a Final Report and/or any data derived therefrom is published, Customer will publish such Final Report and/or data in its entirety in order to limit the possibility of any information being used out of context.
5.6 Customer acknowledges that Supplier may report to relevant authorities the presence or absence of certain species as a result of Supplier's legal and regulatory obligations.
6. Authorized Users
6.1 Customer shall ensure that only Authorized Users use the Platform and that such use is at all times in accordance with this Agreement.
6.2 Authorized User accounts cannot be shared or used by more than one individual at the same time.
6.3 Customer shall:
(a) be liable for the acts and omissions of the Authorized Users and the Authorized Affiliates as if they were its own;
(b) only provide Authorized Users with access to the Services via the access method provided by Supplier and shall not provide access to (or permit access by) anyone other than an Authorized User; and
(c) procure that each Authorized User (and each Authorized Affiliate) is aware of, and complies with, the obligations and restrictions imposed on Customer under this Agreement, including all obligations and restrictions relating to the Supplier's Confidential Information.
6.4 Customer warrants and undertakes that it, and all Authorized Users and all others acting on its or their behalf (including systems administrators) shall, keep confidential and not share with any third party (or with other individuals except those with administration rights at the Customer and its Authorized Affiliate's organization as necessary for use of the Service) their password or access details for the Platform.
6.5 Customer shall (and shall ensure all Authorized Affiliates and Authorized Users shall) at all times comply with the Acceptable Use Policy, Supplier's policies (as notified to Customer from time to time), and all other provisions of this Agreement.
6.6 If any password has been provided to an individual that is not an Authorized User, Customer shall, without delay, disable (to the extent Customer has the technical ability to do so) any such passwords and notify Supplier immediately.
7. Additional Services
7.1 Customer may request Additional Services from Supplier by submitting an Order Form.
7.2 Upon Order Acceptance and subject to the terms of this Agreement, Supplier shall perform the Additional Services in accordance with:
(a) the Additional Service Description; and
(b) the relevant Order Form.
7.3 Customer acknowledges that Additional Services will incur additional fees and may be subject to Additional Service Terms.
7.4 Where Customer procures Additional Services that include Survey Design Services, the Survey Design Services shall form part of such Additional Services whether they are included in the relevant Order Form or otherwise, and:
(a) Supplier will use reasonable endeavors to provide the Survey Design Services;
(b) Supplier shall use its reasonable endeavors to meet any delivery dates but such dates are indicative only;
(c) unless otherwise specified, Supplier and its suppliers make no warranty or representation regarding the results or accuracy or reliability of any information obtained through the Survey Design Services, or that the Survey Design Services will meet any requirements; and
(d) Customer will be solely responsible for any damages resulting from the use of the Survey Design Services. The entire risk arising out of use or performance of the Survey Design Services remains with Customer, and Supplier has no liability to Customer in relation to the use or performance of the Survey Design Services.
8. Support services
8.1 To the extent and in the manner specified on Supplier's website or in the Order Form, Supplier shall provide Customer with the specified support services.
8.2 Supplier will use reasonable endeavors to notify Customer in advance of scheduled maintenance but Customer acknowledges that it may receive no advance notification for downtime caused by a Force Majeure Event or for other emergency maintenance.
9. Changes to services and terms
9.1 In relation to Services, Supplier may at its absolute discretion make, and notify Customer of, updated versions of the Documentation, Additional Service Terms or Acceptable Use Policy from time to time by notifying Customer of such update by email (together with a copy of the update or a link to a copy of the update) or by any other reasonable means which Supplier elects ('Update Notification').
9.2 The document(s) subject to such Update Notification shall replace the preceding version of the same document(s) for the purposes of this Agreement from the date 10 Business Days after Update Notification of such revised document(s) (the 'Update') (or at such later date as Supplier may specify). If Customer continues to use the Services after such 10 Business Day period, Customer will be deemed to have accepted the changes.
9.3 In the event that Customer reasonably believes that any Update materially impacts it negatively in any manner it may by notice elect to terminate this Agreement in respect of the impacted Services provided it exercises such right prior to such Update taking effect pursuant to section 9.2 and notifies Supplier at the time of exercising such right of the negative impact which has caused it to exercise this right. In the event of such termination Customer shall receive a refund of any pre-paid Fees in respect of such terminated Services.
9.4 Customer acknowledges that Supplier shall be entitled to modify the features and functionality of the Platform, provided that any such modification does not materially adversely affect the use of Platform by Authorized Users.
9.5 Supplier may, without limitation to the generality of section 9.4, establish new limits on the Platform (or any part), including limiting the volume of data which may be used, stored or transmitted, remove or restrict application programming interfaces or make alterations to data retention periods, provided such changes are introduced by Update to the relevant impacted contractual documents.
9.6 Supplier may, from time to time, offer various promotions or offers. Unless otherwise stated, these Portfolio Terms will continue to apply to such promotion or offer. In respect of any promotion or offer, Supplier may, in its absolute discretion, end or withdraw the promotion or offer without warning.
10.1 Customer shall pay the fees that are set out in the Order Form.
10.2 Supplier may invoice Customer for the Fees (including any additional fees), at any time following Order Acceptance. Customer shall pay all invoices (in full and without deduction or set-off) within the time period set out in the Order Form, or otherwise within 30 days of the date of the invoice.
10.3 Unless otherwise stated, Fees are exclusive of applicable taxes or other charges and Customer shall in addition pay such applicable taxes and other charges at the prevailing rate and in the manner prescribed by law from time to time.
10.4 Unless the Order Form specifies that there shall be no automatic renewals and unless terminated in accordance with section 20, following the end of the Subscription Period the Agreement shall automatically renew on the same terms (subject to section 10.5) for subsequent Subscription Periods of the same duration as the first. Customer authorizes Supplier to charge the Fees for the next renewal term to the previous payment method.
10.5 Supplier may increase the Fees (including any other applicable charges) from time to time by the higher of (i) any cumulative increase in the jurisdiction’s consumer price index over the previous 12 months, and (ii) 5 per cent of then current Fees, upon sixty days notification to Customer, the change in Fees taking effect on the following anniversary of the Subscription Start Date.
10.6 Customer agrees that Supplier may charge to the credit card or other payment mechanism selected by Customer and approved by Supplier all amounts due and owing for the Services, including taxes and any other fee or charge associated with Customer's use of the Services. Customer agrees that in the event Supplier is unable to collect the fees owed to Supplier for the Services, Supplier may take any other steps it deems necessary to collect such fees and:
(a) Customer will indemnify Supplier for all costs and expenses incurred by Supplier in connection with such collection activity, including collection fees, court costs and attorneys' fees;
(b) any discount that was applied shall cease and Customer shall immediately pay the full undiscounted amount, including any remaining sums due for the remaining subscription term; and
(c) Supplier may collect compound interest at the maximum rate permitted by applicable law, on amounts not paid when due.
11.1 Subject to the remainder of this section 11, Supplier warrants that:
(a) the Platform, and each Additional Service shall operate materially in accordance with the relevant Documentation when used in accordance with this Agreement under normal use and normal circumstances during the relevant Subscription Period; and
(b) it will provide each of the Services with reasonable care and skill.
11.2 Save as described in this section 11, Customer understands and agrees that to the maximum extent permitted by law:
(a) the Platform is provided 'as is' and Supplier, its Affiliates and suppliers expressly disclaim all warranties of any kind, express or implied, including without limitation any warranty of merchantability or fitness for a particular purpose;
(b) unless otherwise specified, Supplier, its Affiliates and suppliers make no warranty or representation regarding the results that may be obtained from the use of the Services, regarding the accuracy or reliability of any information obtained through the Services, or that the Services will meet any requirements, or be uninterrupted or error free. Use of the Services are at Customer's sole risk;
(c) any material and/or data downloaded or otherwise obtained through the use of the Platform is at Customer's own discretion and risk;
(d) Customer will be solely responsible for any damages resulting from the use of the Services. The entire risk arising out of use or performance of the Services remains with Customer;
(e) unless otherwise specified, Supplier does not guarantee nor promise any specific results from use of the Services;
(f) Supplier does not guarantee the performance of any services or other acts (including the collection of samples in accordance with Supplier's instructions, any collected samples being sent to Supplier for testing and/or the quality and accuracy of any data produced as the result of such testing) by a Project Partner under a Project Partner Agreement;
(g) Supplier does not guarantee the accuracy of any Final Reports and shall not be liable for any claims or losses of any nature in connection with information provided as part of a Final Report; and
(h) Supplier does not guarantee that a Project will progress under a Project Partner Agreement to a stage where a Final Report may be generated and Supplier has no liability to Customer if a Final Report is not generated in respect of a Project due to the acts or omissions of a Project Partner.
11.3 If there is a breach of any warranty in section 11.1, Supplier shall use reasonable endeavors to repair or replace the impacted Services within a reasonable time.
11.4 The warranties in section 11.1 are subject to the limitations set out in section 18 and shall not apply to the extent that any error in the Services arises as a result of (in whole or in part):
(a) incorrect operation or use of the Services by Customer, any Authorized Affiliate or any Authorised User (including any failure to follow the Documentation);
(b) use of any of the Services other than for the purposes for which it is intended;
(c) use of any Services with third party software or services or on equipment with which it is incompatible (unless Supplier recommended or required the use of that other software or service or equipment in the Documentation);
(d) any act by any third party (including hacking or the introduction of any virus or malicious code);
(e) any modification of Services (other than that undertaken by Supplier or at its direction); or
(f) any breach of this Agreement by Customer (or by any Authorized Affiliate or Authorized User).
11.5 Supplier may make Non-Supplier Materials available for Customer's use in connection with the Services. Customer agrees that:
(a) Supplier has no responsibility for the use or consequences of use of any Non-Supplier Materials;
(b) Customer's use of any Non-Supplier Materials shall be governed by the applicable terms between Customer and the owner or licensor of the relevant Non-Supplier Materials;
(c) Customer is solely responsible for any Non-Supplier Materials used in connection with the Services and for compliance with all applicable third-party terms which may govern the use of such Non-Supplier Materials; and
(d) the continued availability, compatibility with the Services and performance of the Non-Supplier Materials is outside the control of Supplier and Supplier has no responsibility for any unavailability of or degradation in the Services to the extent resulting from the availability, incompatibility or performance of any of the Non-Supplier Materials.
11.6 Customer acknowledges that no liability or obligation is accepted by Supplier (howsoever arising whether under contract, tort, in negligence or otherwise):
(a) that the operation of the Platform shall not be subject to minor errors or defects; or
(b) that the Services (including the Platform, or any Additional Service) shall be compatible with any other software or service or with any hardware or equipment except to the extent expressly referred to as compatible in the relevant Documentation.
11.7 Other than as set out in this section 11, and subject to section 18.5, all warranties, conditions, terms, undertakings or obligations whether express or implied and including any implied terms relating to quality, fitness for any particular purpose or ability to achieve a particular result are excluded to the fullest extent allowed by applicable law. Customer acknowledges that calculation methods are constantly evolving depending on academic studies published and that metrics provided as part of the Services may change from time to time on this basis. Supplier will use reasonable endeavors to explain such changes where they are material.
12. Customer's responsibilities
12.1 Customer shall (and shall ensure all Authorized Affiliates and Authorized Users shall) at all times comply with all applicable laws relating to the use or receipt of the Services, including laws relating to privacy, data protection and use of systems and communications.
12.2 Customer shall provide Supplier with all assistance as Supplier may reasonably require, and Customer acknowledges that Supplier's ability to provide Services may be adversely affected, interrupted and/or delayed if Customer does not provide such information or assistance.
12.3 Customer is solely responsible for the inputting of Customer's account information or any information by an Authorized User, and backing up Customer's account information or any other data.
12.4 Supplier shall have no liability for any delays, interruptions or other problems to the extent caused (in whole or in part) by:
(a) the Customer's failure to comply with section 12.1; and/or
(b) any acts or omissions of a Project Partner (either under or in relation to a Project Partner Agreement or otherwise), including the Project Partner's failure to comply with the written instructions of Supplier under a Project Partner Agreement.
13. Intellectual property
13.1 Subject to the Additional Service Terms, all intellectual property rights in and to the Services (including in all Software, Documentation, Supplier Provided Materials, and bespoke interfaces, processes, techniques and know-how, but excluding any Customer Data) and any data created during and in connection with the provision of the Services belong to and shall remain vested in Supplier or its licensees. To the extent that Customer, any of its Affiliates or any person acting on its or their behalf acquires any intellectual property rights in the Software, Documentation, Supplier Provided Materials or any other part of the Services, Customer shall assign or procure the assignment of such intellectual property rights with full title guarantee (including by way of present assignment of future intellectual property rights) to Supplier or such third party as Supplier may elect. Customer shall execute all such documents and do such things as Supplier may consider necessary to give effect to this section 13.1.
13.2 Supplier has no obligation to deliver any copies of any software to Customer in connection with this Agreement or the Services.
13.3 All intellectual property rights in and to the Customer Data belong to and shall remain vested in Customer or the relevant third-party owner. Customer hereby grants a royalty-free, irrevocable, perpetual, and non-exclusive licence for Supplier (and each of its direct and indirect sub-contractors) to use, copy and otherwise utilize the Customer Data to the extent necessary to perform or provide the Services or to exercise or perform Supplier's rights, remedies and obligations under this Agreement.
13.4 In respect of any Final Reports created in respect of a Project Partner Agreement, Customer acknowledges and agrees that Supplier (or its licensors) owns all intellectual property rights in or relating to the Final Reports and Supplier Background IPR and that no rights therein are granted to Customer.
13.5 In consideration for the price of £1, receipt of which is duly acknowledged by Customer, Customer hereby assigns all present and future intellectual property rights in or relating to any final reports (including (i) the format and data charts within it, (ii) the algorithms, techniques and know-how used to generate such reports, (iii) photographic images contained within such reports, and (iv) all technical data generated during analysis of samples set out in the report) delivered by Supplier to Customer prior to Order Acceptance (“Prior Reports”), to Supplier.
13.6 Supplier grants Customer a sole, perpetual non-transferrable non-sublicensable licence to use the Final Report and/or Prior Reports for Customer’s business purposes including the right to make all or part of the Final Report and/or Prior Reports public (provided that where partly published, the published element reflects the applicable Final Report or Prior Report as a whole). The foregoing licence does not include the right for Customer to exploit the Final Reports, Prior Reports and/or Supplier Background IPR for direct commercial gain or facilitate any third party in doing so unless expressly agreed in writing by Supplier. Any non-compliance by Customer with the terms of the licence granted in this clause, shall entitle Supplier to revoke the licence upon written notice.
13.7 Notwithstanding clauses 13.4 and 13.5, Supplier shall not without prior written permission of Customer (which may be given or withheld at the sole discretion of Customer) publish or otherwise make available to third parties a non-anonymized copy or extract of the Final Reports and/or Prior Reports and the confidentiality provisions set out in clause 16 shall apply to any information in the Final Report and/or Prior Reports that identifies or could reasonably identify Customer.
13.8 Customer acknowledges that in certain jurisdictions, applicable law or regulation may dictate that local governmental and/or regulatory institutions have rights in or to a Final Report and/or Prior Report (including any part thereof), and that such rights may, in full or in party, take precedence over or supersede the rights in such Final Report expressed herein as belonging to Customer and/or Supplier.
13.9 Notwithstanding any Additional Service Terms, Supplier may: (a) collect anonymized, de-identified information relating to Customer's use of the Services (including usage data and Customer Data) in order to improve Supplier's products and services and for other reasonable internal uses; and (b) aggregate such anonymized, de-identified information with anonymous, de-identified information of its other customers for purposes of creating reports and other deliverables as part of its products and services. Any intellectual property rights in data, analysis and improvements derived from Supplier's use of Customer Data and Customer Provided Materials shall be owned by Supplier.
13.10 To the extent Non-Supplier Materials are made available to, or used by or on behalf of Customer, any Authorized Affiliate or any Authorized User in connection with the use or provision of the Platform, such use of Non-Supplier Materials (including all licence terms) shall be exclusively governed by applicable third-party terms notified or made available by Supplier or the third-party and not by this Agreement. Supplier grants no intellectual property rights or other rights in connection with any Non-Supplier Materials.
13.11 Supplier may use any feedback, comments or suggestions about the Services or any of Supplier's technologies, products or services, provided by Customer (including its Authorized Affiliates or any Authorized Users) without charge or limitation ('Feedback'). Customer hereby assigns (or shall or procure the assignment) of all intellectual property rights in the Feedback with full title guarantee (including by way of present assignment of future intellectual property rights) to Supplier at the time such Feedback is first provided to Supplier.
13.12 Except for the rights expressly granted in this Agreement, Customer, any Authorized User, any Customer Affiliate and their direct and indirect sub-contractors, shall not acquire in any way any title, rights of ownership, or intellectual property rights of whatever nature in the Services (or any part including the Software or Documentation) and no intellectual property rights of either party are transferred or licensed as a result of this Agreement.
13.13 Customer hereby grants Supplier a limited, revocable, non-exclusive, non-transferable, worldwide and royalty-free licence to use Customer's name and trade mark in order to refer to the supply by Supplier of the Services on Supplier's website and in Supplier's sales and promotion material.
13.14 Supplier agrees, in relation to its use of the names and trade marks described in section 13.13, to adhere to the reasonable instructions of Customer as to the form and manner in which the marks may be used and shall adhere to Customer's brand guidelines (as notified to Supplier from time to time).
13.15 Customer shall not access all or any part of the Software and/or Documentation in order to build a product or service which competes with, or is intended to be used in place of, the Software.
13.16 This section 13 shall survive the termination or expiry of this Agreement.
14. Supplier indemnity
14.1 Subject to section 14.2 and 14.5, Supplier shall indemnify, keep indemnified and hold harmless Customer (on Customer's own behalf on behalf of each of Customer's Affiliates) from and against any losses, claims, damages, liability, costs (including legal and other professional fees) and expenses incurred by it (or any of its Affiliates) as a result of any third party alleging that Customer's use of the Services infringes any intellectual property right (an 'IP Claim').
14.2 The provisions of section 14.1 shall not apply unless Customer:
(a) promptly (and in any event within 20 Business Days) notifies Supplier upon becoming aware of any actual or threatened IP Claim and provides full written particulars;
(b) makes no comment or admission and takes no action that may adversely affect Supplier's ability to defend or settle the IP Claim;
(c) provides all assistance reasonably required by Supplier subject to Supplier paying Customer's reasonable costs; and
(d) gives Supplier sole authority to defend or settle the IP Claim as Supplier considers appropriate.
14.3 The provisions of section 18 shall apply to any payment of costs and damages awarded or agreed in settlement or final judgment of an IP Claim under section 14.1.
14.4 In the event of any IP Claim, Supplier may elect to terminate this Agreement immediately by written notice and promptly refund to Customer on a pro-rata basis for any unused proportion of Fees paid in advance. This section 14.4 is without prejudice to Customer's rights and remedies under section 14.1.
14.5 Supplier shall have no liability or obligation under this section 14 in respect of any IP Claim which arises in whole or in part from:
(a) any modification of the Services (or any part) without Supplier's express written approval;
(b) any Non-Supplier Materials;
(c) any Final Reports and/or Prior Report;
(d) any Customer Data;
(e) any breach of this Agreement by Customer;
(f) use of the Services (or any part) otherwise than in accordance with this Agreement and the Documentation; or
(g) or use of the Services (or any part) in combination with any software, hardware or data that has not been supplied or expressly authorized by Supplier.
14.6 Subject to section 18.5, the provisions of this section 14 set out Customer's sole and exclusive remedy (howsoever arising, including in contract, tort, negligence or otherwise) for any IP Claim.
15. Customer indemnity
15.1 Customer agrees to indemnify, defend and hold Supplier harmless, including Supplier's Affiliates, officers, directors, employees, consultants, agents and suppliers from any and all third party claims, liability, damages and/or costs (including, but not limited to, attorneys' fees) arising from Customer's violation of the Agreement, including non-or late payment of fees, or the infringement or violation by Customer or any other user of Customer's account of any intellectual property or other right of any person or entity or applicable law.
15.2 This section 15 shall survive termination or expiry of the Agreement.
16. Confidentiality and Customer Data
16.1 Subject to the terms of this Agreement, Supplier shall maintain the confidentiality of the Customer Data and shall not without the prior written consent of Customer or in accordance with this Agreement, disclose or copy the Customer Data other than as necessary for providing the Services or its express rights and obligations under this Agreement.
16.2 Supplier undertakes to disclose the Customer Data only to those of its officers, employees, agents, contractors and direct and indirect sub-contractors to whom, and to the extent to which, such disclosure is necessary for the purposes contemplated under this Agreement or as otherwise reasonably necessary for the provision or receipt of the Services.
16.3 The provisions of this section 16 shall not apply to information which:
(a) is or comes into the public domain through no fault of Supplier, its officers, employees, agents or contractors;
(b) is lawfully received by Supplier from a third party free of any obligation of confidence at the time of its disclosure;
(c) Customer has expressly stated in any Additional Service Terms that Supplier may disclose;
(d) is independently developed by Supplier (or any of its affiliates or any person acting on its or their behalf), without access to or use of such information; or
(e) is required by law, by court or governmental or regulatory order to be disclosed.
16.4 This section 16 shall survive the termination or expiry of this Agreement for a period of 10 years.
16.5 To the extent any Customer Data is personal data, Supplier shall ensure that such Customer Data may be disclosed or used only to the extent such disclosure or use does not conflict with any of Supplier's obligations under applicable data protection laws. Sections 16.1 to 16.4 (inclusive) are subject to this section 16.5.
17. Supplier's Confidential Information
17.1 Customer shall maintain the confidentiality of the Supplier's Confidential Information and shall not without the prior written consent of Supplier, disclose, copy or modify the Supplier's Confidential Information (or permit others to do so) other than as necessary for the performance of its express rights and obligations under this Agreement.
17.2 Customer undertakes to:
(a) disclose the Supplier's Confidential Information only to those of its officers, employees, agents and contractors to whom, and to the extent to which, such disclosure is necessary for the purposes contemplated under this Agreement;
(b) procure that such persons are made aware of and agree in writing to observe the obligations in this section 17; and
(c) be responsible for the acts and omissions of those third parties referred to in this section 17.2 as if they were Customer's own acts or omissions.
17.3 Customer shall give notice to Supplier of any unauthorized use, disclosure, theft or loss of the Supplier's Confidential Information immediately upon becoming aware of the same.
17.4 The provisions of this section 17 shall not apply to information which:
(a) is or comes into the public domain through no fault of Customer, its officers, employees, agents or contractors;
(b) is lawfully received by Customer from a third party free of any obligation of confidence at the time of its disclosure;
(c) is independently developed by Customer, without access to or use of such information;
(d) Supplier has expressly stated in any Additional Service Terms that Customer may disclose; or
(e) is required by law, by court or governmental or regulatory order to be disclosed provided that Customer, where possible, notifies Supplier at the earliest opportunity before making any disclosure.
17.5 This section 17 shall survive the termination or expiry of this Agreement for a period of 10 years.
18. Limitation of liability
18.1 The extent of the party's liability under or in connection with this Agreement (regardless of whether such liability arises in tort, contract or in any other way and whether or not caused by negligence or misrepresentation or under any indemnity) shall be as set out in this section 18.
18.2 Subject to sections 18.3 and 18.5, Supplier's aggregate liability howsoever arising under or in connection with this Agreement and any Order Form) shall not exceed an amount equal to the Fees for all Services paid or payable to Supplier under the applicable Order Form(s) to which such liability relates in the 12-month period immediately preceding the first incident giving rise to any other claim under this Agreement.
18.3 Subject to section 18.5, Supplier's aggregate liability in respect of each individual free or trial service (and all support services provided in connection with the same) (howsoever arising under or in connection with this Agreement) shall not exceed £1,000.
18.4 Subject to section 18.5, Supplier shall not be liable to Customer or any third party for:
(a) any consequential, incidental, indirect, exemplary, special or punitive damages whether arising out of breach of contract, tort (including negligence), or otherwise, regardless of whether such damages were foreseeable and whether or not Supplier has been advised of the possibility of such damages, and notwithstanding the failure of any agreed or other remedy of its essential purpose;
(b)any of the following (whether direct or indirect): loss of profit or revenue; destruction, loss of use or corruption of data; loss or corruption of software or systems; loss or damage to equipment; loss of use; loss of production; loss of contract; loss of opportunity; loss of savings, discount or rebate (whether actual or anticipated); and/or harm to reputation or loss of goodwill;
(c) any liability related to: the inputting of information by Customer (or Authorized Users); the accuracy, quality and integrity of data retrieved from third party sources; delays, failures or loss of or damage to data arising from the transfer of data over the internet or other communications networks or facilities;
(d) any obligation between Customer and a Project Partner under any contractual agreement between such parties;
(e) any liability in connection to a Project Partner Agreement being terminated due to the material breach or insolvency of a Project Partner; and/or
(f) any liability in connection to the breakdown of relations between Customer and a Project Partner.
18.5 Notwithstanding any other provision of this Agreement, Supplier's liability shall not be limited in any way in respect of the following:
(a) death or personal injury caused by negligence;
(b) fraud or fraudulent misrepresentation; or
(c) any other losses which cannot be excluded or limited by applicable law.
18.6 This section 18 shall survive the termination or expiry of this Agreement.
19.1 Supplier may suspend access to the Services to Customer (including all or some of the Authorized Users) if:
(a) Supplier reasonably suspects that there has been a serious misuse of the Services; or
(b) Customer fails to pay any sums due to Supplier by the due date for payment and such amount remains unpaid within 15 Business Days after Customer has received notification that the payment is overdue.
19.2 Where the reason for the suspension is suspected misuse of the Services, without prejudice to its rights under section 20, Supplier will take steps to investigate the issue and may restore or continue to suspend access at its discretion (acting reasonably).
19.3 In relation to suspensions under section 19.1(b), access to the Services will be restored promptly after Supplier receives payment in full and cleared funds.
19.4 Fees shall remain payable during any period of suspension notwithstanding that Customer, Authorized Affiliates or some or all of the Authorized Users may not have access to the Services.
20.1 Subject to earlier termination in accordance with clause 20.2, the Order Form shall last for the Initial Period. Thereafter, the Order Form will automatically renew for successive Renewal Periods, at the end of the Initial Period or relevant Renewal Period, unless either party gives the other written notice of non-renewal at least 90 days prior to the end of the Initial Period or relevant Renewal Period. Customer’s access and use of the Services and Additional Services if applicable will terminate on termination of the Order Form
20.2 Either party may terminate this Agreement immediately at any time by giving notice in writing to the other party if:
(a) the other party commits a material breach of this Agreement and such breach is not remediable;
(b) the other party commits a material breach of this Agreement which is not remedied within 14 days of receiving written notice of such breach; or
(c) the other party has failed to pay any amount due under this Agreement on the due date and such amount remains unpaid within 20 Business Days after the other party has received notification that the payment is overdue.
20.3 Any breach by Customer of the Acceptable Use Policy or of section 13 shall be deemed a material breach of this Agreement which is not remediable.
21. Consequences of termination
21.1 Immediately on termination or expiry of this Agreement (for any reason):
(a) the rights granted by Supplier under this Agreement shall terminate and Customer shall (and shall procure that each Authorized User and Authorized Affiliate shall) stop using the Services and the rights granted by Supplier under this Agreement shall terminate; and
(b) Customer shall immediately pay to Supplier all amounts payable regardless of whether due.
21.2 Termination or expiry of this Agreement shall not affect any accrued rights and liabilities of either party at any time up to the date of termination or expiry and shall not affect any provision of this Agreement that is expressly or by implication intended to continue beyond termination.
21.3 Any provision of this Agreement that expressly or by implication is intended to come into or continue in force on or after termination or expiry of this Agreement shall remain in full force and effect.
22.1 Entire agreement. This Agreement constitutes the entire agreement between the parties and supersedes all previous agreements, understandings and arrangements between them in respect of its subject matter, whether in writing or oral. Each party acknowledges that it has not entered into this Agreement in reliance on, and shall have no remedies in respect of, any representation or warranty that is not expressly set out in this Agreement. Nothing in this Agreement shall limit or exclude any liability for fraud.
22.2 Variation. No variation of this Agreement shall be valid or effective unless it is an Update made in accordance with this Agreement or made in writing, refers to this Agreement and is duly signed or executed by, or on behalf of, each party.
22.3 Notices. Notices under this Agreement shall be in writing and sent to: (a) in the case of Supplier, the email or postal address set out at www.naturemetrics.com/contact-us; and (b) in the case of Customer, either by email to the email address as set out in the Order Form, or by post to Customer's address as set out in the Order Form. Notices may be given, and shall be deemed received: (i) by first-class post: 2 Business Days after posting; (ii) by hand: on delivery; and (iii) by e-mail: 24 hours from delivery if sent to the correct email address and no notice of delivery failure is received, or on receipt of confirmation of receipt from the recipient. This section does not apply to notices given in legal proceedings or arbitration.
22.4 Data protection. The parties will process Personal Data in accordance with applicable data protection and privacy legislation in force from time to time. Supplier shall collect and process any Personal Data in accordance with the Privacy Notice, as may be amended from time to time. If, for any reason, the situation arises that Personal Data being processed is not limited to business contact information, the parties agree that they shall enter into a separate data processing agreement. For the purposes of this section, the terms 'Personal Data' and 'process' shall have the meaning given to them in the applicable data protection legislation.
22.5 Assignment and subcontracting. Supplier may at any time transfer (by way of assignment or novation) the Agreement to any of its group companies upon written notification or general notice on its website (and Customer consents to any such transfer). Supplier may also assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of Supplier's rights and obligations under the Agreement.
22.6 Set off. Each party shall pay all sums that it owes to the other party under this Agreement without any set-off, counterclaim, deduction or withholding of any kind, save as may be required by law.
22.7 No partnership or agency. The parties are independent and are not partners or principal and agent and this Agreement does not establish any joint venture, trust, fiduciary or other relationship between them, other than the contractual relationship expressly provided for in it. Neither party shall have, nor shall represent that it has, any authority to make any commitments on the other party's behalf.
22.8 Severance. If any provision of this Agreement (or part of any provision) is or becomes illegal, invalid or unenforceable, the legality, validity and enforceability of any other provision of this Agreement shall not be affected. If any provision of this Agreement (or part of any provision) is or becomes illegal, invalid or unenforceable but would be legal, valid and enforceable if some part of it was deleted or modified, the provision or part-provision in question shall apply with such deletions or modifications as may be necessary to make the provision legal, valid and enforceable. In the event of such deletion or modification, the parties shall negotiate in good faith in order to agree the terms of a mutually acceptable alternative provision.
22.9 Export restrictions. Customer shall comply (and shall ensure all Authorized Users comply) with all applicable laws, rules, and regulations governing export that apply to the Services, and shall not export or re-export, directly or indirectly, separately or as a part of a system, the Services to, or access or use the Services in, any country or territory for which an export licence or other approval is required under the laws of the United Kingdom, the United States, the European Union or any of its member states, without first obtaining such licence or other approval. Customer shall be solely responsible for ensuring its access, importation and use of the Services complies with all export and other laws.
22.10 Waiver. If Customer breaches this Agreement and Supplier takes no action, or if Supplier delays in taking action, that does not mean that Supplier has waived its rights and shall be entitled to exercise its rights and remedies. If Supplier does waive a breach by Customer, Supplier will only do so in writing (signed by one of Supplier's directors), and that shall not mean that Supplier will automatically waive any later breach by Customer.
22.11 Events outside of Supplier's control. Supplier shall not be liable or responsible for any failure to perform, or delay in performance of, any of its obligations to Customer if such failure or delay is caused by an event outside of Supplier's control ('Force Majeure Event'). If such Force Majeure Event takes place and it affects the performance of obligations: (i) Supplier will contact Customer as soon as reasonably possible to notify Customer; and (ii) Supplier's obligations will be suspended for the duration of the event. If the Force Majeure Event continues for a continuous period of more than one (1) calendar month, Supplier may terminate this Agreement by giving fourteen (14) days' prior written notice to Customer.
22.12 Governing law and jurisdiction. The Agreement, and any dispute or claim arising out of or in connection with it or its subject matter or formation, shall be governed by the laws of:
(a) England, if Customer contracts with NatureMetrics Ltd, and to the fullest extent permitted by law, the English courts shall have the exclusive jurisdiction over any dispute or claim relating to this Agreement; or
(b) the Province of Ontario and the federal laws of Canada applicable therein, if Customer contracts with NatureMetrics North America Ltd, and to the fullest extent permitted by law, the courts of the Province of Ontario shall have the exclusive jurisdiction over any dispute or claim relating to this Agreement.
Schedule 1 – Definitions and interpretation
1. The following definitions apply to this Agreement:
'Acceptable Use Policy'
means Supplier's policy on acceptable use of the Services (as Updated from time to time), which as at Order Acceptance is the latest version available at: www.naturemetrics.com/terms-conditions
'Additional Service Description'
has the meaning given to it in the definition of 'Documentation'.
'Additional Service Terms'
In respect of each Additional Service, any specific additional or amended terms that are relevant to that Additional Service (as Updated from time to time) and made available to Customer.
the additional services (including additional features or functionality) specified in a relevant Order Form.
in relation to a party, any entity that directly or indirectly controls, is controlled by, or is under common control with that party.
means, in respect of the relevant Service, the Customer Affiliates (if any) identified in the Order Form as 'Authorized Affiliates' in respect of that Service.
the users authorized by Customer to use Services in accordance with the terms of this Agreement.
(a) where Customer has contracted with NatureMetrics North America Ltd, any day other than (i) Saturday or Sunday, or (ii) a day on which banking institutions in Ontario, Canada are authorized or required by law to remain closed; or (b) where Customer has contracted with NatureMetrics Ltd, any day other than (i) Saturday or Sunday, or (ii) a day on which banking institutions in London, UK are required by law to remain closed.
the business customer that contracts with Supplier to use the Services.
in relation to Customer, any entity that directly or indirectly controls, is controlled by, or is under common control with Customer.
all data (in any form) that is provided to Supplier or uploaded or hosted on any part of any Service by Customer or by any Authorized User (but excluding Feedback).
means: (a) the description and specification of the Platform (as Updated from time to time) (the 'Platform Description'); (b) in respect of the Services, the relevant instructions as to how to use the Services made available by Supplier (as Updated from time to time); and (c) the description and specification of each Additional Service (as Updated from time to time) (the 'Additional Service Description').
has the meaning given to it in section 13.10.
the fees as set out in the Order Form and any other amounts payable to Supplier under this Agreement.
has the meaning given to it in section 14.1.
all services, data, information, content, intellectual property rights, websites, software and other materials provided in connection with the Services.
means Materials provided, controlled or owned by or on behalf of a third party (including such Non-Supplier Materials which may be linked to, interact with or used by the Services) and all other Materials expressly identified as Non-Supplier Materials in this Agreement and/or any other third party data made available to Customer under this Agreement.
the effective date of the relevant Order Form.
means the electric or physical form (including its schedules, annexes and appendices (if any)) ordering Services and entered into by or on behalf of Customer and Supplier, incorporating this Agreement (and as varied by the parties by agreement in writing from time to time).
means a report (and any data included therein) provided to a Project Partner by Supplier under a Project Partner Agreement detailing the results of the analyses conducted as part of the kits and tests services provided by Supplier to the Project Partner under the relevant Project Partner Agreement
means use solely for Customer's business purposes.
Supplier's cloud-hosted platform by which Customer accesses certain functionality.
the terms of service set out in this Agreement.
'Project Partner Agreement'
an agreement dated on or about the date of this Agreement between Supplier and a Project Partner for the provision of services by Supplier to the Project Partner including the Project Partner's use of kits and tests services in order to generate Final Reports.
the access to the Platform, and each service to which Customer has subscribed as set out in the Order Form (and 'Service' shall refer to each respective service separately).
the software used by or on behalf of Supplier to provide the Services.
subject to sections 10.4 and 20, the duration which the Services are to be provided as initially set out in the Order Form and as varied in accordance with this Agreement .
the entity that Customer has contracted with in accordance with section 2.1.
“Supplier Background IPR”
means (i) the format of the Final Report and/or Prior Report and all data charts within it, (ii) the algorithms, techniques and know-how used to generate the Final Report and/or Prior Reports, (iii) photographic images contained within the Final Report, and (iv) all technical data generated during analysis of each sample commissioned or supplied by Customer or it’s Project Partner (including but not limited to location and topographical data).
'Supplier's Confidential Information'
all information (whether in oral, written or electronic form) relating to Supplier's business which may reasonably be considered to be confidential in nature including information relating to Supplier's technology, know-how, intellectual property rights, assets, finances, strategy, products and customers. All information relating to pricing and any other technical or operational specifications or data relating to the Services shall be part of the Supplier's Confidential Information.
'Supplier Provided Materials'
means all of the Materials provided or made available by or on behalf of Supplier and Supplier Background IPR, but excluding all Customer Data and all Non-Supplier Materials.
'Survey Design Services'
Consultancy services in respect of survey design for testing in relation to certain Projects.
2. In this Agreement, unless otherwise stated:
(a) clause, paragraph, schedule, or other headings are included for convenience only and shall have no effect on interpretation;
(b) a reference to a ‘party’ includes that party’s personal representatives, successors and permitted assigns;
(c) words in the singular include the plural and vice versa;
(d) any words that follow 'include', 'includes', 'including', 'in particular' or any similar words and expressions shall be construed as illustrative only and shall not limit the sense of any word, phrase, term, definition or description preceding those words;
(e) a reference to 'writing' or 'written' includes any method of reproducing words in a legible and non-transitory form (including email);
(f) a reference to legislation is a reference to it as amended, extended or re-enacted from time to time, and includes all subordinate legislation made from time to time under that legislation.
These Terms were published on 8th February 2024.